Action No

Action No. 010314569

[This amended pleading was filed in the fall of 2008, to correct some infelicities in the original and to make changes corresponding to the other side's amended Statement of Defence, altered slightly to add the "Reynolds Defence".]

IN THE COURT OF QUEEN’S BENCH OF ALBERTA

JUDICIAL DISTRICT OF EDMONTON

BETWEEN:

FERREL CHRISTENSEN

-Plaintiff

-and-

THE NATIONAL POST COMPANY, NP HOLDINGS COMPANY,

GLOBAL COMMUNICATIONS LIMITED and DONNA LAFRAMBOISE

-Defendants

REPLY TO AMENDED STATEMENT OF DEFENCE

The Defence of Fair Comment

1. In reply to paragraph 15 of the Amended Statement of Defence, the Plaintiff admits that what is alleged in subparagraphs (a) through (s) is true, but says that each, when taken in context, is either irrelevant to the words complained of, or incomplete and misleading, or both.

2. The Plaintiff denies what is alleged in subparagraph 15(t).

3. With respect to paragraphs 15 and 16 of the Amended Statement of Defence, the Plaintiff denies that the words complained of were fair comment made in good faith and without malice, and does so for reasons including:

(a) All of the words complained of are and purport to be allegations of fact rather than comment;

(b) In the alternative, if any of the words complained of are comment, which is not admitted but denied, they are not fair comment because the statements of fact upon which they are based are either false or else insufficient to support the comments so as to make any of them fair;

(c) In the further alternative, to the extent that any of the words complained of are comment, they are not fair comment because they were not made in good faith and without malice.

4. With respect to paragraph 17 of the Amended Statement of Defence, the Plaintiff says that the facts there adduced as evidence of good faith on the part of the Defendants are incomplete and misleading, and says that the “13 questions” (sic: in fact 14, with two questions numbered “5") referred to are evidence not of fairness and good faith but of unfairness and bad faith.

Alleged refusal to answer questions

5. With respect to the allegation in paragraph 17 that Christensen did not answer the “13 questions” therein referred to, the allegation in paragraph 24 that the Defendants requested Christensen to answer questions and provide comment but that Christensen declined some of these opportunities, and the allegation in paragraph 27 that Christensen refused to answer questions provided to him: those allegations are all false or misleading, in that:

a) Christensen in fact responded, in an e-mail sent to the Editor-in-Chief of The Post, to the questions relating to his book. That response is included in Appendix E to this Reply;

b) The tendentious and accusatory framing of some of the questions, together with serious distortions of what Christensen had published in his book, in the context of other behaviour including that set out in paragraph 21 of the Amended Defence to Counterclaim, showed to Christensen the questioner’s lack of good faith and the imprudence of further communicating with her directly;

c) Christensen thus proposed to discuss the issues through counsel, and communicated directly with The Post’s Editor-in-Chief, but the Defendants did not respond to him;

d) Particulars of the “13 questions” referred to are found in an e-mail sent by Laframboise to Christensen on March 23^rd, 2001, a true copy of which is attached as Appendix A to this Reply. Appendix B is a true copy of an e-mail from her to the ECMAS president on March 23^rd, 2001, one carrying similarly revealing questions.

The Defence of Qualified Privilege

6. With respect to paragraphs 18 and 19 of the Amended Statement of Defence, the Plaintiff denies that any duty of the Defendants to inform the public, or any interest the public had in being thus informed, was such as to establish qualified privilege, or such as to legally shield them from compensating the Plaintiff for the damage caused him by their false and defamatory publication.

7. With respect to paragraph 20 of the Amended Statement of Defence, the Plaintiff denies that the Defendants acted in good faith in gathering information, or that in the circumstances they could reasonably rely upon the information so gathered, and says that the Defendants were reckless as to the truth or falsity of the defamatory words as alleged in the Statement of Claim.

The Defence of Public-Interest Responsible Journalism

8. With respect to paragraphs 22 and 23 of the Amended Statement of Defence, the Plaintiff denies that the defence of Public-Interest Responsible Journalism is available under the common law in the Province of Alberta;

9. In the alternative, with respect to paragraphs 22 and 23 of the Amended Statement of Defence, the Plaintiff says that the words complained of were published with malice, were not based on investigation upon which the Defendants could reasonably rely, and were not published according to the principles of responsible journalism.

Damages and mitigation

10. In response to paragraphs 25 through 28, the Plaintiff says that he attempted to mitigate potential damage to his reputation, and did in fact mitigate that damage, by sending e-mails telling his side of the story. [. . .]The Plaintiff requested an opportunity to publish material on his side, but the Defendants ignored or refused his request and nevertheless published the defamatory words.

11. The Plaintiff says that the Defendants’ conduct, in not only failing to apologize but also making the Plaintiff’s efforts to mitigate his damages the subject of a Counterclaim, further aggravates the damage suffered by the Plaintiff, is further evidence of malice and bad faith, and further justifies punitive or exemplary damages. This is particularly so given the discrepancy in sociopolitical power between the Plaintiff and the Defendants.

AND BETWEEN:

THE NATIONAL POST COMPANY and DONNA LAFRAMBOISE

-Plaintiffs by Counterclaim

(Defendants)

-and-

FERREL CHRISTENSEN

-Defendant by Counterclaim

(Plaintiff)

AMENDED STATEMENT OF DEFENCE TO COUNTERCLAIM

12. The Defendant by Counterclaim (“Dr. Christensen” or “The Plaintiff”) repeats what is alleged in his Statement of Claim and Reply. He denies all that is alleged in the Counterclaim except as expressly admitted herein.

General Defences

13. With respect to paragraphs 29 through 34 in the Counterclaim, Dr. Christensen admits that the words complained of are substantially as he wrote them with the following exceptions. In paragraph 31, the word ‘may’ has been omitted immediately before the phrase ‘condone pedophilia’. In paragraph 33, the word ‘seemingly’ has been omitted between the word ‘based’ and the phrase ‘on gross misinterpretation’, and the word ‘conversation’ has been rendered plural.

14. Dr. Christensen says that the words complained of in the Counterclaim are incomplete and misleading. True and complete copies of the communications containing those words are attached hereto as Appendices C, D, E, F and G.

[. . .]

Justification

15. The Defendant by Counterclaim pleads justification regarding such of the words set out in paragraphs 29 through 34 of the Counterclaim as may be defamatory, and regarding the entire documents, read in context and as a whole, from which said words have been quoted. In their natural and ordinary meaning, in the contexts of the entire documents in which they appear, those words are either true statements of fact or else inferences warranted by the facts, and were made in good faith and without malice.

16. With respect to the ordinary meanings alleged in paragraph 35 and the corresponding innuendoes alleged in paragraph 36 of the Counterclaim, the Defendant by Counterclaim says that they fall into different categories as follows:

a) The Plaintiff admits that the statements in subparagraphs (f), (g), (i), (k), (m), (o), (q), (r), (s), (t), and (u) of paragraph 35 substantially represent the ordinary meanings of the corresponding words complained of in paragraphs 29 through 34 of the Counterclaim, save that (m), (o), (q), (r), (s) and (t) actually referred to Ms. Laframboise alone, not to all of the Plaintiffs by Counterclaim;

[. . .]

b) The statements in subparagraphs 35(d), 35(e) and 35(l) can each be seen as expressing the ordinary meanings of the corresponding words complained of, but only if: (d) and (e) are changed to refer to Ms. Laframboise, not to the other Plaintiffs by Counterclaim, (d) is seen as referring to specific named behaviour, not to all of Ms. Laframboise's actions, (e) is changed to "closer to blackmail than to allowing time to investigate further", and the phrase "to Christensen" is removed from (l);

c) The statements in paragraph 35 labelled (a), (b), (c), (h), (j) and (p) are not and cannot be read as the ordinary meanings of the specific words for which they are alleged to be the ordinary meanings, and [. . .]also [. . .]are not contained as innuendo in the corresponding specific words complained of. In the alternative, if any of the statements in paragraph 35 labelled (a), (b), (c), (h), (j) or (p) is the ordinary meaning of or is innuendo contained in any of the words complained of or all of them collectively, then that statement is true, if it is applied to none of the Plaintiffs by Counterclaim except Ms. Laframboise;

d) The statement in subparagraph 35(n) is not the ordinary meaning of and not innuendo contained in any or all of the words complained of.

17. With respect to the implied meanings or innuendoes alleged in paragraph 37 of the Counterclaim, Dr. Christensen says that those in subparagraphs (b), (e), (f), (h) and (i) are in fact the ordinary meanings of the corresponding words complained of, provided that each one be appropriately qualified by a phrase such as "in part" or "to a degree", and (b) is applied to Ms. Laframboise alone. Dr. Christensen says that each of the aforesaid statements thus qualified is a true statement of fact or a comment warranted by the facts. Further, Dr. Christensen denies that any of the statements in subparagraphs (a), (c), (d) and (g) are innuendoes contained in any of the words complained of.

18. Dr. Christensen says that among the particulars justifying the words complained of are

the facts listed in paragraph 21 of this Amended Defence to Counterclaim.

Qualified Privilege

19. Further, or in the alternative, the Defendant by Counterclaim says that the words complained of are all of them protected by qualified privilege, in that he had an interest in defending himself and a moral and public duty to defend ECMAS, against the damages from the article on March 30^th and the then-threatened nation-wide publication of the defamatory words that are the subject of his Statement of Claim. Further, the persons to whom his words were published had an interest in learning the truth about these matters.

20. Particulars of these claims include the following:

a) The e-mail messages described in paragraphs 29 and 30 of the Counterclaim were initially copied only to persons who Christensen hoped might know some way to influence the Defendants to change their minds about the threatened article; the messages described in paragraphs 30, 31 and 32 were subsequently copied only to persons to whom ECMAS and Dr. Christensen had been defamed by the individual, Ms. Malenfant, who was then acting in concert with Ms. Laframboise, and to a few others with an interest in receiving the information and probable prior knowledge of the then-threatened defamatory publication.

b) The press release described in paragraph 33 was sent to newspapers (the Edmonton Journal, Calgary Herald and National Post) already aware of the Defendants’ pending article about Dr. Christensen, in a further attempt to mitigate the damages from the threatened defamation. It was subsequently sent to the e-mail list of a Calgary fathers'-rights association, whose members had already been exposed to media coverage about Dr. Christensen due to the Defendants’ preparations to publish the defamatory article about him.

c) The message referred to in paragraph 34 was sent in reply to comments on the Calgary fathers'-rights e-mail list, comments arising from the media coverage noted in sub-paragraph 20(b) of this Defence, including an earlier article in the National Post on March 30^th about ECMAS.

Fair Comment

21. In the further alternative, the Defendant by Counterclaim says that to the extent that any of the words complained of are defamatory and not justified, they are fair comment about a matter of public interest. The words complained of were based on facts including:

a) Based on allegations by Louise Malenfant, reporter Ms. Laframboise was preparing to publish a negative story about ECMAS and [Tim] Adams at the time when Dr. Christensen sent his e-mail of March 22, 2001.

b) At the time when Dr. Christensen sent his e-mail of March 24, 2001, Ms. Laframboise had made maligning statements about Mr. Adams and Dr. Christensen and stated her intent to publish against the two of them. She did this without having made any attempt to hear their side from anyone who would know any significant amount of the relevant information; this included not having contacted Mr. Adams and Dr. Christensen themselves.

c) At the time when Dr. Christensen sent his e-mail of March 24, 2001, Ms. Laframboise had suggested to ECMAS that Dr. Christensen condones sex abuse of children, had suggested that Dr. Christensen be expelled for that reason, and had said she would delay publication of her article to allow them time to decide whether to do so.

d) At the time when Dr. Christensen sent his e-mail of March 25, 2001, Ms. Laframboise had (in her e-mail to him and in her interview with the ECMAS president) reflected irrational reasoning over his claims about child sexuality.

e) Attached to Dr. Christensen's e-mail of March 25, 2001 was an anticipatory article, submitted to National Post editor-in-chief Kenneth Whyte in hypothetical reply to the threatened defamatory article about him. It was sent with a request that it too be printed, if the threatened article were to be published, after Dr. Christensen had altered it as appropriate to address the final details of The Post’s own article.

f) At the time that he wrote his e-mail of March 25, 2001, Dr. Christensen's moral and scientific integrity had been repeatedly called into question by Ms. Laframboise, using snippets from his book, in the course of her preparations to publish about him. This behavior was subsequently repeated in the published article.

g) At the time that he wrote his e-mail of March 25, 2001, Ms. Laframboise's words had revealed that she could not have studied the corpus of scientific research on children and sex, and revealed that her views on the subject had been irrationally influenced by emotion.

h) When Dr. Christensen wrote his e-mail of March 25, 2001, Ms. Laframboise had made accusations about his views, indicating that she intended to publish them, to the group ECMAS suggesting that he be expelled over them.

i) Before Dr. Christensen wrote his e-mail of March 25, 2001, Ms. Laframboise had published claims that many have been falsely convicted of child sex abuse. People making that claim are frequently accused by certain others of being soft on pedophiles.

j) At the time Dr. Christensen wrote his e-mail of March 25, 2001, Ms. Laframboise had displayed clear unwillingness to consider his book's evidence that punitiveness toward children's own sexuality can be as harmful as child sex abuse.

k) When Dr. Christensen wrote his e-mail of March 25, 2001, Ms. Laframboise had been collaborating with a person (Ms. Malenfant) who was then sharing a website with a far-right-wing antihomosexual propagandist.

l) When Dr. Christensen sent his April 3, 2001 press release, Ms. Laframboise had made false claims about his views on children and sex that seemed to be based on gross misinterpretation of his words.

m) When Dr. Christensen sent his April 3, 2001 press release, Ms. Laframboise had behaved in ways that reflected on her integrity as a journalist; these include seriously maligning Dr. Christensen without cause and without seeking to learn how he would defend himself, manipulatively influencing the news she was reporting, and failing to disclose important relevant facts in the first article she published about ECMAS.

n) When Dr. Christensen sent his April 9, 2001 e-mail to Doug Pierozinski, Ms. Laframboise had engaged in actions including those listed in sub-paragraph 21(m) of this Defence. The said e-mail was sent to Mr. Pierozinski on the discussion list to which the press release of April 3, 2001 had previously been posted.

Malice

22. With respect to paragraphs 38 and 39 of the Counterclaim, Dr. Christensen denies that any of the words complained of were made with malice, express malice, in a reckless manner or with intent to mislead.

Damages

23. The Defendant by Counterclaim denies that the Plaintiffs have suffered damages as alleged or at all, except as caused by their own actions.

WHEREFORE THE DEFENDANT BY COUNTERCLAIM PRAYS THAT THE COUNTERCLAIM BE DISMISSED.

DATED at the City of Edmonton in the Province of Alberta and delivered by Bradley J. Willis, Barrister and Solicitor, solicitor for the Plaintiff, whose address for service is in care of STRATHCONA LAW GROUP, #132, 150 Chippewa Road, Sherwood Park, Alberta T8A 6A2, or by fax at 449-1222.

ISSUED THIS _______ DAY OF NOVEMBER, 20018

______________________________________

CLERK OF THE COURT OF

QUEEN’S BENCH OF ALBERTA